SERVICE OF THE CLAIM FORM: FURTHER TRAPS FOR THE UNWARY

The post on “Service Faults” http://civillitigationbrief.wordpress.com/2013/07/01/service-faults-and-the-match-is-over/  pointed out one of the traps for the unwary in relation to service of the claim form.  However the decision in Bethell Construction –v- Deloitte & Touche [2010] EWHC (Judge Hodge Q.C.) highlights some other potential pitfalls.  It is worthy of close examination both by claimants serving proceedings and defendants faced with a difficult situation.

The facts

Bethell was a professional negligence case.  Proceedings were issued towards the end of the limitation period.  The claim form was sent to the defendant’s solicitors, but expressly stated to be “not by way of service”. It was held by the defendant’s solicitors.  The defendant’s solicitor agreed a three month extension of time for service of the claim form and particulars of claim, terminable upon 14 days’ notice.   After negotiations failed to reach a settlement the claimant served the particulars of claim but did not serve the claim form.

Upon receiving the particulars of claim the defendant wrote giving 14 days’ formal notice of termination of the agreement. The claimant did not serve the claim form within the 14 day period after that letter.

The applications

When the claim form was not served the defendant made this point to the claimant who promptly made an application for a declaration that the claim form should be validly served or, alternatively, that service be dispensed with. The defendant made a cross-application that the court no longer had jurisdiction to hear the claim because the claim form was not served in time.

The outcome

The outcome, in short, was that the claimant failed miserably. The court rejected the argument that the claim form, originally sent “not by way of service”, was somehow activated when the particulars of claim were served.

The court found that the letter the defendant sent termination the agreement to extend was very carefully phrased. The judge had “no doubt” that the defendant was setting a trap for the defendant in that the letter (deliberately) did not refer to the need to serve the claim form.  However the judge found that any properly informed reader would have understood the letter as determining the time for service of the claim form.

Claimant’s arguments rejected

The judge also rejected the claimant’s argument that there was an estoppel and rejected an application under CPR 6.15(2) whereby the court can make an order that the steps already taken to bring the claim for to the attention of the defendant by an alternative method is good service.

The court refused to make an order dispensing with service

Finally the judge rejected the claimant’s application to dispense with service. The judge held that the claim form had been delivered “not by way of service”. It was never delivered again. When the particulars of claim were served nothing was said by the claimant to indicate that, by that act, the claimant was treating the claim form as having been served.  There was nothing to suggest that the not-by-way-of-service condition attached to the claim form had been extinguished. The defendant was not under any duty to point out to the claimant the need to serve the claim form.

The judge found that the claim form had not been validly served within time. The action was statute barred. He found that the court had no jurisdiction to hear the claim.  The defendant was awarded costs.

The trap the claimant helped set up for itself?

This case illustrates the need for great caution to be taken in relation to all matters relating to service of the claim form.

Avoiding claim form traps

1.         An un-served claim form is a very dangerous thing.

2.         A claim form sent “not by way of service”, can be even more dangerous.

3.         A claimant needs to consider the wordings of extensions of time very carefully.

4.         The claimant failed even though the defendant actually had a copy of the claim form in its possession.

5.         The court had little (indeed no practical) sympathy for a claimant that had fallen into a trap that, it had in part, created.

6.         The defendant was not under any duty to point out to the claimant the need to serve the claim form.